Kartar Nath vs Inder Nath And Ors.
1987 Latest Caselaw 484 Del

JUDGMENT

P.K. Bahri, J.

(1) This appeal has been brought against order dated November 21, 1979 of Shri M.K.Chawla, Additional District Judge (as His Lordship then was), vide which he held that shop No. 573B is not in possession of the appellants as tenant and the appellant was liable to give physical actual possession uF the said shop to respondent No. 1-Inder Nath to whose share the said shop had fallen in the partition decree.

(2) Briefly the facts giving rise to this appeal are that two and a half storeyed property bearing municipal Nos. 573, 574, 575 and 576, G.B. Road, Delhi, had been purchased by Inder Nath, Pishori Lal and the appellant Kartar Nath. The ground floor of the property comprised of three shops bearing municipal Nos. 573,574 and 575 while the first and second floor bearing the common municipal No 576 Before the purchase of this property by the said three persons, shop No. 573 was in the tenancy of M/s. Dhingra Brothers, a partnership firm, at a rental of Rs. 30.00 per mensem. Inder Nath, Pishori Lal and the appellant Kartar Nath and Girdhari Lal were the partners of the said firm. Girdhari Lal was father of Inder Nath. Admittedly shop No. 574 is in tenancy of M/s. Umrao Singh Hardwari Lal at the rate of Rs. 30.00 per mensem and shop No. 575 is in the tenancy of M/s. Mohinder Singh Kartar Singh at the rate of Rs. 40.00 per mensem. The first floor and the second floor bearing municipal No. 576 were in the tenancy of M/s. Baij Nath Hardwari Lal earlier. It is common case of the parties that after the purchase of the property by the three owners, shop No. 573 was divided and a partition wall was put therein, and the partnership firm of M/s. Dhingra Brothers was also dissolved and half portion of the said shop, which was given municipal No. 573A, came in the tenancy of the partnership firm. M/s. Dhingra Brothers now comprised of only two partners, namely, Inder Nath and his father Girdhari Lal. whereas the other portion of the said shop was given municipal No. 573B and said to have come in the tenancy of Kartar Nath-appellant and Pishori Lal, two co-owners and a business under the name and style of M/s. 0m Traders was started in the said shop. It is the case of the appellant that the rent was being realised by Inder Nath in respect of the said portion of the shop and the rent from other tenants also used to be realised and the rent so collected used to be divided amongst the co-owners.

(3) Kartar Nath-appellant had brought a suit seeking partition of the said property by metes and bounds and he specifically pleaded in the said suit that shop bearing No. 573B is in his occupation as tenant at the rate of Rs. 15.00 per month. It is pertinent to mention that Along with the plaint the plaintiff-appellant had filed an application for grant of injunction and appointment of a Receiver in which he reiterated these facts. It has come out in the pleadings that the tenant of the first floor and the second floor, namely, M/s.Baij Nath Hardwari Lal had surrendered possession of the said portion to Inder Nath and Inder Nath was holding vacant possession of the said portion of the property on behalf of all the owners. So, it was prayed that the Receiver be appointed to take physical possession of the first floor and the second floor and also he should realise the rent from the tenants of other portions and injunction was prayed for restraining the respondents from parting with possession of first floor and the second floor to anyone else. Inder Nath filed the reply to this application on April 3, 1968, in which he specifically admitted in para 3 that shop No. 573B is in the tenancy of M/s. Kartar Nath Pishori Lal. It is necessary to reproduce the pleas taken by Inder Nath in that reply which clinches the issue arising in this appeal :

"THE premises No. 573 which consists of two shops is in the tenancy of M/s. Dhingra Brothers having been taken by M/s. Dhingra Brothers and other portion of premises No. 573 is in the tenancy of M/s. Kartar Nath Pishori Lal, plaintiff and defendant No. 2".

"NO-Wherein this reply any plea has been taken that tenancy of shop No. 573B which was with M/s. Kartar Nath Pishori Lal had merged in the ownership rights of the three owners. However, in the written statement which came to be filed by Inder Nath later on, it was denied that shop No. 573B was in the tenancy of the appellant. No reason has been given in the written statement how the admission came to be made in the reply to the injunction application regarding the existence of tenancy rights of the appellant in shop No. 573B. It appears that a preliminary objection had been raised challenging the market value of the property which was to determine the pecuniary jurisdiction of the court. A preliminary issue in that respect was also framed and the parties led evidence. Inder Nath appeared as Dwi on February 26, 1969, and he made a categorical admission that shop No. 573B is in the tenancy of M/s. Kartar Nath Pishori Lal. A preliminary decree for partition of the property was passed by Shii P.L. Singla, Additional District Judge, on May 22, 1974, by which he declared the plaintiff and defendants 1 and 2 owners having one-third share each and he appointed Shri Ishwar Sahai Mathur, Advocate, as Local Commissioner to suggest the mode of partition. No issue was obviously framed whether shop No. 573B is in the tenancy of appellant in view of the admissions, already noticed above by me, made by Inder Nath in the proceedings of the suit. Local Commissioner had filed his report to which certain objections were filed. One of the disputed questions between the parties was whether first floor and the second floor were deemed to be in vacant possession of the owners or any valid tenancy had been created by Inder Nath in the said portion? A final decree for partition was passed by Shri K.S. Sidhu, Additional District Judge (as His Lordship then was) on April 21, 1977, with a direction that the property in dispute be divided into three portions by metes and bounds as shown in plan Ex. CX2. The first portion was to consist of shop No. 573A and shop No.573B and also shall include corresponding portions on the first and second floors and the partition wall was to be erected on the first and second floor exactly above the partition wall existing between shop No. 573 and shop No. 574 on the ground floor. The second portion was to consist of shop No. 574 on the ground floor and the corresponding portions above on the first and second floor and similarly a partition wall was directed to be erected exactly above the partition wall existing between shop No. 574 and shop No. 575 and the third portion was to consist of shop No. 575 on the ground floor and the corresponding portion of the first and second floors above it and the said portion was to include such portions of the area of the first and second floors as are shown in green colour in the site plan Ex. CX2 and are not directly covered by the staircase. It was directed that common passage 5 in width as shown in the site plan Ex. CX2 will be left on the first floor and similarly on the second floor as shown in the site plan and the staircase was to stay common of the three owners. Inder Nath was given first preference in the choice of any one of these three portions. Pishori Lal had died during the pendency of the suit and his legal heirs had been brought on record and it was directed that the other two portions shall be allotted to the plaintiff-Kartar Nath and legal heirs of Pishori Lal by draw of lot.

(4) Inder Nath admittedly had exercised the option to have the first portion i.e. shops No. 573A and 573B and the corresponding portions on the first and second floors. He filed an execution for getting physical possession of his portion including shop No. 573B.

(5) The appellant contested the execution taking the plea that he cannot be physically dispossessed from shop No. 573B as he is in possession of the said portion as tenant and he would continue to hold the said portion as a tenant under Inder Nath. However, the executing court vide the impugned order has given a finding that the appellant ceased to be the tenant in the said. shop as an owner cannot be his own tenant.

(6) The short question which, hence, arises in this appeal is whether this view of the executing court is legally sound ? I have already detailed out the admissions made by Inder Nath in the proceedings in the suit which make it clear that after the purchase of the property by the three owners the shop No. 573 was divided and half portion of the said shop, which was given municipal No. 573B, the appellant and Pishori Lal became tenants. It was not the case set up by Inder Nath that with the purchase of the property by three owners, who were partners of M/s. Dhingra Brothers Along with one Girdhari Lal, the tenancy rights had merged in the ownership rights, rather it is the admitted case that the tenancy of M/s. Dhingra Brothers, a partnership firm comprising of four partners including the three owners, continued and thereafter the partnership was dissolved and one portion shop No. 573A. came in the tenancy of a newly constituted partnership firm of M/s. Dhingra Brothers comprising of Inder Nath and his father as partners and the other portion shop No. 573B came in the tenancy of appellant-Kartar Nath and Pishori Lal, the two owners at a rental of Rs. 15.00 per month. The broad proposition of law enunciated in the impugned judgment is that a co-owner cannot be a tenant in a joint property under all the owners is to say the least fallacious. Section 111(d) of the Transfer of Property Act, which has been. referred to by counsel for respondent No. I, reads as follows : S. 111. "Determination of lease-A lease of immoveable property determines- (c) ............ (d) in case the interests of the lessee and the Lesser in the whole of the property become vested at the same time in one person in the same right : his section would apply only if the three owners had been the tenants in the property and they had purchased the property, then it could be said that the tenancy rights automatically merged with the ownership rights, but that is not the case here. The three owners who acquired the whole of the property were partners of a firm which had another partner, namely, Girdhari Lal and the said partnership firm admittedly was the tenant in shop No. 573 and obviously rights of Girdhari Lal could not have been affected adversely by the mere fact that the three other partners had acquired proprietary rights in the said shop. Legally M/s. Dhingra Brothers would be deemed to have continued to be tenant in the said shop under the three owners. The three owners occupied dual legal status, by virtue of becoming owners they became landlords of shop No. 573 and by virtue of being three partners/in M/s. Dhingra Brothers they became tenants Along with Girdhari Lal in the said shop. After the purchase of the property, the partnership was dissolved inasmuch as the shop No. 573 was divided into two portions, one portion 573A again came in the tenancy of M/s. Dhingra Brothers which comprised of two partners, namely, Inder Nath co-owner and his father Girdhari Lal and the other portion 573B came in the tenancy of Kartar Nath and Pishori Lal, the two co-owners. They occupied dual position ; they were co-landlords Along with Inder Nath and co-tenants under the three landlords. It is always question of intention of the parties whether tenancy rights were to be considered to have been surrendered or were intended to be merged in the ownership rights In Jyotish Thahur and Others v. Tarakant Jha and Others, Air 1963 Sc 655, it was observed that the union of the superior and sub-ordinate interests will not automatically cause a merger and merger will be held to have taken place if the intention to merge is clear and not otherwise. It was also observed in this judgment that in the absence of any express indication of intention, the courts will proceed on the basis that the party had no intention to merge if it was to his interest not to merge and also if a duty lay on him to keep the interests separate. In the cited case raiyati interest held by the purchaser was held to be kept separate with the observation that: "EVEN if it be held that the doctrine of merger applies to the Santhal Parganas, to this extent that if the person in whom the two interests unite chooses to treat them as one, the lesser interest should be held to have merged in the larger interest, in the absence of any evidence of such choice the raiyat must be held to have intended to keep the two interests distinct and separate."

(7) Another judgment brought to my notice is Duthin Lacchanbati Kumari & Others v. Bodh Nath Tiwari (since deceased) & Others, 1922 Privy Council 94, in which it was held that the fact that the two sets of title do not meet in identity of name, but are separately attached to separate members of the family, is a matter to be considered on the question whether merger was ever intended. It was observed that merger is not a thing which occurs epos jure upon the acquisition of what may be called the superior with the inferior right. It was held that there may be many reasons : conveyancing reasons, reasons arising out of the object of the acquisition of the one right being merely for a temporary purpose, family reasons and others in the course of which the expediency of avoiding the coalescence of the interest and preserving the separation of title may be apparent and the question to be settled in the application of the doctrine is, was such a coalescence of right meant to be accomplished as to extinguish that separation of title which the records contain. Facts of the cited case, in brief, were that one Mathura Nath, proprietor, had granted lease of agricultural piece of land to Dhir Nath Tiwari and Loke Nath Tiwari. Later on Mathura Nath granted a patni lease of the whole mouza in favor of Tej Narayan Tiwari and Kalit Nath Tiwari. Thereafter Tej Narayan Tiwari sold his half share to Kalit Nath. The question whether those transactions were fundamentally joint family transactions and should be so treated for the purpose of application of the doctrine of merger is a question which arose for decision. The patni lease and the mukarrari lease were granted in the name of different persons, as noticed above. Kalit was holding the patni en clock but was only a co-lessee as a Mukarraridar of Jadua patti . It was held by the Privy Council that two sets of title do not meet in identity of name, but are separately attached to separate members and the lower court was right in holding that no merger was intended or has taken place. Similar is the case here. There is no merger of tenancy rights in the ownership rights inasmuch as at no point of time all the lessees acquired the title in the property so as to attract the provision of Section 111(d) of the Transfer of Property Act. Similar view has been taken in Jogendra Krishna Roy & Another v. Shafar Ali & Others, Air 1923 Calcutta 373 and Shaikh Faqir Bakhsh v. Murli Dhar & Others . In the case of Shafar Ali (supra), the plaintiff was a lessee of a part of property before acquisition of proprietary interest by the plaintiff and the defendant. It was held that plaintiff's rights under the lease of a part of the property did not merge in his right as joint owner of whole of the property as between the parties the plaintiff held a valid and subsisting lease. In Badri Narain Jha & Others v. Rameshwar Dayal Singh & Others, , a similar question again arose for decision. In this case also a lessee had acquired a share in the proprietary interest of the property. It was observed by the Hon'ble Supreme Court that if the Lesser purchases the lessee's interest, the lease no doubt is extinguished as the same man cannot at the same time be both a landlord and a tenant but there is no extinction of the lease if one of the several lessees purchases only a part of the Lesser's interest. In such a case the leasehold and the reversion cannot be said to coincide. It was observed that hence, in the case of an estate which is subject to Lakhraj and mokarrari interests, mere purchase by one of the several joint holders of the mokarrari interest, of portions of the lakhraj interest cannot bring about an extinction of the lease or break its integrity. There is no coalescence of the interest of the Lesser and the lessee in the whole of the estate and that being so, the mokarrari interests of the purchaser does not merge in his lakhraj interest. In Hari Pratap & Another v, Ramgopal & Another, , a shop was jointly owned by three persons and was taken on lease by the tenant and tenant had purchased a fractional share of the shop. It was held that the tenancy rights had not merged with the proprietary rights and in such a case the tenant occupies a dual position, namely, position of a tenant with respect to portion of the shop and position of a landlord with respect to the share purchased by him. Again in Chintaman Mahto v. Smt. Fanindra Devi & Others, , it was observed that merger is a question of intention and decision of the question whether when a lesser interest vests in a person who holds greater interest, merger has taken place or not. depends upon the intention of the person who holds both the interests. This intention may be express, it may be implied or in cases where the party is incapable of expressing his intention the court has to consider what is beneficial to him. It is only where the two interests are co-extensive and vest in the same person in the same right, prima fade there would be merger unless it is proved that the intention of the holder was to keep the two interests separate. Balakrishnan and Others v. Makkam and Others, , it was rightly observed that the interest of the Lesser and the lessee.in the whole of the property must unite in the same person at the same time so that it could be inferred that a merger of the two interests has taken place.

(8) Counsel for the respondent has placed reliance on Syed Ahmed v. Salima Bi & Others, . But the facts in '.he said case are distinguishable because in the said case the tenant had acquired the whole of the property and it was held that the tenancy rights had been extinguished by his purchasing the property. In the present case, the appellant is not the sole owner of the shop 573B so as to be inferred that his tenancy rights in the said shop stood merged with his proprietary rights. In the present case. as discussed above, there is clear admission of Inder Nath that at no point of time any party had intended that any merger of tenancy rights of M/s. Dhingra Brothers should take place when the three partners of that firm purchased the whole of the property or any merger of tenancy rights took place when the shop was partitioned and one portion came in the tenancy of the appellant and Pishori Lal ; rather the intention of the parties is clear that they never intended any merger of any tenancy rights taking place with the purchase of the property by the three owners. At no point of time all the co-tenants i.e. all the four partners of M/s. Dhingra Brothers became owners. On partition of shop No. 573 the tenancy of the only two owners in shop No. 573B was created whereas tenancy in shop No. 573A was created in the name of one co-owner and father of the co-owner.

(9) Counsel for respondent No. 1 has argued that the case may be remanded to the executing court so that parties may lead evidence and the court may decide the matter as to whether there was any merger of the tenancy rights of shop No. 573B with the proprietary rights. I am afraid that any remand of the case is called for in view of the pleas taken by the parties as noticed by me in the opening of the order in detail. The judgment of the lower court suffers from serious illegality and the same has to be set aside with the finding that respondent No. 1 is only entitled to get symbolic possession of shop No. 573B, as the appellant continues to be a tenant in the same.

(10) In the result, I allow the appeal and set aside the said finding of the executing court. The executing court shall now proceed with the execution in accordance with law on other points. The parties are directed to appear before the executing court for further proceedings on November 27, 1987. In view of the legal question involved, I leave the parties to bear their own costs in this appeal.